Right to life in jeopardy: Bombay HC grants ‘IS recruit’ bail

Iqbal Ahmed Kabir Ahmed had appealed in the HC against the special National Investigation Agency (NIA) court on May 27, 2019 rejecting his bail application. The HC had reserved its verdict on the plea on July 14.

A Division Bench of Justice S S Shinde and Justice N J Jamadar, noting that its interference in the case was “inescapable”, observed: “In our considered opinion, the further incarceration of the appellant, in the face of the extremely unlikely situation of the trial being completed in near future, would be in negation of the protection of life and personal liberty under Article 21 (Right to Life in the Constitution).”

“Where the period of incarceration awaiting adjudication of guilt becomes unduly long, right to life and the protection of fair and reasonable procedure, envisaged by Article 21, are jeopardised,” it added.

Imposing stringent conditions, the HC said that Ahmed will be released on bail on furnishing a personal bond of Rs 1 lakh and sureties in the like amount. He will also have to report to NIA’s Mumbai branch on a regular basis till the conclusion of trial and surrender his passport.

Further, Ahmed cannot leave the jurisdiction of NIA court in Mumbai, without the court’s permission. He also cannot tamper with evidence and will have to cooperate and attend trial proceedings as and when required. “He shall not try to establish communication with the co-accused or any other person involved directly or indirectly in similar activities, through any mode of communication,” the HC said.

Ahmed was booked under the Unlawful Activities (Prevention) Act (UAPA), among others, for allegedly joining IS. In his plea, Ahmed had said that he has been in custody since August 2016 but the trial is yet to begin.

On August 7, 2016, the Maharashtra Anti-Terrorism Squad (ATS) had arrested then 28-year-old Ahmed, after two other arrested accused – Nasir Chaus and Shaheed Khan – spoke about his role in the case during questioning.

As per the prosecution, Ahmed was a co-conspirator and part of the Parbhani module that was planning to carry out an attack on the Aurangabad ATS. The group was allegedly planning to target former SP Navinchandra Reddy, who had killed an alleged SIMI operative in 2012. The case was later transferred to the NIA.

Senior counsel Mihir Desai and advocate Kritika Agarwal, representing Ahmed, argued that the chargesheet failed to prove his involvement in making explosives. Desai added the NIA could not establish that Ahmed propagated IS ideology and witnesses have only said he spoke about IS in the context of world politics.

Desai said also argued that Ahmed should be released on bail in light of the Areeb Majeed case. Over six years after his arrest on charges of travelling to Iraq and Syria to join IS, Kalyan’s Areeb Majeed was granted bail by the HC in February. Noting that the right to fair and speedy trial was recognised under Article 21 of the Constitution, the court held that the same was applicable to Majeed, given that “there was no likelihood of the trial being completed within a reasonable time”.

Special Public Prosecutor Aruna Pai, representing NIA, said there was sufficient incriminating material against Ahmed to substantiate that he was working against national interests. She maintained that there was no delay from the prosecution’s side. Justice Jamadar, who authored the verdict, noted, “At this juncture, there is no prima facie material to indicate that the accused instigated the commission of offence or insurgency. Nor there is, prima facie material to indicate that the accused advocated violent reactions.” The HC added: “…mere possession of an oath form, owing allegiance to banned terrorist organisation without subscribing thereto, prima facie does not appear to be an incriminating circumstance.”

“The appellant is entitled to be released on bail on merits and on the ground of prolonged incarceration, which infringes his right to life and personal liberty,” it said.